[00:00:00] Speaker 03:
The next case is Barde Inc.

[00:00:05] Speaker 03:
versus Lincoln Fabrics.

[00:00:08] Speaker 03:
Mr. Burchow, when you're ready.

[00:00:09] Speaker 00:
Thank you, Your Honor.

[00:00:15] Speaker 00:
Good morning, may it please the court.

[00:00:17] Speaker 00:
I've reserved five minutes.

[00:00:19] Speaker 00:
We have a single claim term at issue on this appeal.

[00:00:25] Speaker 00:
Six page specification, no extrinsic evidence, no experts.

[00:00:31] Speaker 00:
Yet I've managed to put 65 pages of briefing in front of you.

[00:00:35] Speaker 00:
Hopefully I can focus on a couple issues that I think are most important.

[00:00:44] Speaker 00:
And the first one relates to the dependent claims

[00:00:49] Speaker 00:
10 to 14 in the 379 patent.

[00:00:54] Speaker 00:
And I believe in view of the court's recent decisions in Littlefews and Behalta and some of the others that we put in our briefs and discuss, this may be our most compelling point.

[00:01:08] Speaker 00:
Behalta is an interesting decision.

[00:01:10] Speaker 00:
There you had a specification which actually had an express definition of the term antibody.

[00:01:18] Speaker 00:
But that express definition was inconsistent with some of the dependent claims in that case.

[00:01:27] Speaker 00:
And even in the face of that express definition, the court preserved those dependent claims and went with a broader construction.

[00:01:38] Speaker 00:
The court held that the defendant's construction was plausible.

[00:01:43] Speaker 05:
So can you contain your best evidence to support your proposed construction is clear of the dependent claims?

[00:01:51] Speaker 00:
I think it's one of our best arguments, sure.

[00:01:55] Speaker 00:
I mean, I think that there's really no dispute about what the term securing yarns means.

[00:02:01] Speaker 00:
I think the court made that clear.

[00:02:03] Speaker 00:
The only question is whether to exclude these warp and weft yarns.

[00:02:11] Speaker 00:
And I think when you look at these dependent claims, that confirms what's in the specification.

[00:02:18] Speaker 00:
the embodiment that's in the specification the embodiment that the court the district court admitted was an embodiment of the invention I Think that's correct.

[00:02:36] Speaker 00:
There's no there.

[00:02:37] Speaker 00:
There's no Figure that shows the use of the warp and weft yarns in

[00:02:45] Speaker 00:
as securing.

[00:02:46] Speaker 00:
However, if you look at column three of the patent, lines 35 to 42, the spec actually talks about that.

[00:02:57] Speaker 00:
And it talks about figure two.

[00:03:00] Speaker 00:
It says, for example,

[00:03:02] Speaker 00:
one or more of the warp yarns and or weft yarns could be interwoven along a path similar to the path of the securing yarn, as shown in figure two, to secure the first layer and the second layer.

[00:03:15] Speaker 00:
So I think that, you know, I think the court really ignored that part.

[00:03:19] Speaker 03:
Well, but the sentence above that says those yarns, those warp yarns could be used

[00:03:25] Speaker 03:
in addition to or in place of the securing yarns, why doesn't that suggest that there's still a distinction between the warp and weft yarns and the securing yarns?

[00:03:37] Speaker 00:
Well, I think those are two different terms.

[00:03:39] Speaker 00:
In addition to is something different than in place of.

[00:03:42] Speaker 00:
And I think the court recognized that.

[00:03:44] Speaker 00:
The court said, the court admitted, that this is an embodiment wherein the warp and weft yarns can be used as a substitute for

[00:03:55] Speaker 03:
the securing but does that mean they're a securing yarn or they're just a work or web yarn used as the functional equivalent I believe in that case that they are the securing I mean you you basically got you've got two layers that are being made together that's the case why wouldn't you use the language that's in the defendant claims where it suggests that the working web yarns can be the securing yarns why wouldn't that have been used in the SPAC I don't have an answer for that

[00:04:24] Speaker 03:
This is a pretty, I'm not going to say it.

[00:04:28] Speaker 03:
I'm not Judge Laurie.

[00:04:31] Speaker 03:
It's a pretty thin basis to argue.

[00:04:34] Speaker 03:
Because can you point to me in the independent claims anywhere where these three things are not referred to all separately?

[00:04:41] Speaker 00:
They are referred to separately.

[00:04:42] Speaker 00:
Right.

[00:04:42] Speaker 03:
So you agree all of the dependent claims have a weft yarn and a securing yarn, and they're not overlapping.

[00:04:50] Speaker 03:
The independent claim.

[00:04:51] Speaker 03:
Independent's already up.

[00:04:52] Speaker 00:
I'm sorry.

[00:04:53] Speaker 00:
Can you repeat the question?

[00:04:54] Speaker 03:
Yes.

[00:04:54] Speaker 03:
The independent claims, there's nowhere where a work yarn is referred to as a securing yarn or vice versa.

[00:05:02] Speaker 00:
There's three separate things.

[00:05:03] Speaker 00:
That's correct.

[00:05:03] Speaker 00:
It's only in the dependent claims.

[00:05:05] Speaker 03:
So let me ask you this hypothetical.

[00:05:07] Speaker 03:
If we didn't have the dependent claims, and you still have this language that you have suggested as an embodiment, that would be an unclaimed embodiment then.

[00:05:17] Speaker 03:
So the original patent wouldn't have had any claims for this embodiment.

[00:05:23] Speaker 00:
No, because I think the independent claims would still cover that embodiment.

[00:05:27] Speaker 03:
Even though on their claim language, they're all set out as structurally different.

[00:05:32] Speaker 03:
How could they do that?

[00:05:34] Speaker 03:
I mean, don't we look at the claim language first, as informed by the specification, but we don't ignore the claim language to determine the claim construction.

[00:05:42] Speaker 03:
So setting aside the dependent claims

[00:05:46] Speaker 03:
The independent claims refer to all three of those things as separate structural limitations.

[00:05:52] Speaker 02:
Correct.

[00:05:53] Speaker 02:
And we're not.

[00:05:54] Speaker 03:
Proper claim construction for all of those independent claims, again, setting aside the later out of dependent claims, coincide with what the district court found here.

[00:06:07] Speaker 00:
I understand the point, Your Honor, but I don't believe that

[00:06:12] Speaker 00:
I still think that the independent claim would cover the embodiment that we're talking about in that column three, where I believe, and the court agrees, that it's an embodiment.

[00:06:27] Speaker 00:
I'm sorry.

[00:06:28] Speaker 03:
You think a piece of fabric that had nose that didn't have separate securing yarns, but used either the warp or the weft yarns to secure it also infringes the

[00:06:41] Speaker 03:
independent claims.

[00:06:44] Speaker 00:
Correct.

[00:06:45] Speaker 03:
Well, I think the independent claim has to cover... Why did he stipulate to not infringement then?

[00:06:52] Speaker 03:
I mean, if you think those claims cover it.

[00:06:54] Speaker 00:
Well, it's in view of the way that the court construed the claims.

[00:06:58] Speaker 00:
I mean, the court was looking at the infringing product as it was going through this and made clear, hey, I don't think this covers this infringing product from Lincoln.

[00:07:09] Speaker 02:
This is what's confusing about this case to me.

[00:07:12] Speaker 02:
I think you've already acknowledged enough that securing yarns are not the same thing as warp and weft yarns.

[00:07:20] Speaker 02:
And claim construction is about defining what a securing yarn is.

[00:07:23] Speaker 02:
Correct.

[00:07:24] Speaker 02:
So I think you're implicitly conceiving a securing yarn needs to be defined, needs to be construed as something different than warp or weft yarns.

[00:07:32] Speaker 02:
But the issue is whether or not a warp or weft yarn can be used to serve the function

[00:07:38] Speaker 02:
of a securing yarn.

[00:07:40] Speaker 02:
Isn't that really the issue?

[00:07:42] Speaker 00:
I think what you have here is you're making two layers.

[00:07:47] Speaker 00:
And if you've got warp and weft yarns in both layers, and for example, you're going to take every fourth weft yarn, and you're going to use that, and you're going to extend it below the next layer, that is the securing yarn.

[00:08:02] Speaker 00:
It's in the same material, the same size, the same weight, the same orientation as the warp and weft yarns.

[00:08:11] Speaker 00:
But because it extends below, as discussed in the spec, it is a securing yarn.

[00:08:17] Speaker 03:
What?

[00:08:18] Speaker 03:
No, I would say, when you say as discussed in the spec, you just mean that one paragraph.

[00:08:23] Speaker 00:
That's the only place it's addressed, and it's the only place it's raised.

[00:08:27] Speaker 00:
And I think, you know.

[00:08:28] Speaker 03:
So you don't have, even though you have a lot of pictures about how this work and all this kind of stuff, and none of the independent claims cover this embodiment, you nonetheless say that that's in the specification.

[00:08:42] Speaker 02:
Correct.

[00:08:44] Speaker 02:
That's the only intrinsic

[00:08:47] Speaker 02:
support other than the dependent claims of the second patent I guess that shows that a warp or weft can be used to function as a security right and I mean that's been the focus of the briefing it's been the focus and what is the implication for that though of what what the proper construction of securing yarn is since the appeal comes to us as a dispute over claim construction and

[00:09:09] Speaker 00:
Right.

[00:09:10] Speaker 00:
And I just think the construction is, as the court pointed out, is securing the errands serves the function of holding these two layers together.

[00:09:18] Speaker 00:
I don't think you need to go beyond that.

[00:09:20] Speaker 05:
Your construction appears to be very litigation driven, if I'm just being honest with you.

[00:09:26] Speaker 05:
I guess the one thing that I'm wondering about is, you added these dependent claims after Lincoln sent you a letter, right, explaining why its accused products did not infringe.

[00:09:40] Speaker 05:
Is that accurate, just to make sure I understand kind of the timeline?

[00:09:44] Speaker 00:
That is correct.

[00:09:46] Speaker 00:
But aside from the timing, there's no evidence, there's nothing in the record that suggests it was only done for purposes of litigation.

[00:09:56] Speaker 00:
But the fact is, if a patentee went to the office and said, hey, we want confirmation in claims

[00:10:07] Speaker 00:
that this patent and these claims should be interpreted in the way we believe they should be interpreted, go through the prosecution.

[00:10:14] Speaker 00:
The examiner looks at and presumably understands what's in the spec and finds support for those dependent claims in the spec.

[00:10:23] Speaker 00:
I don't think there's any prohibition or anything wrong with going at it that way.

[00:10:27] Speaker 02:
The district court seems to have

[00:10:31] Speaker 02:
reduce the impact of the dependent claims, which I agree with you is probably your most compelling evidence here, by calling that claim differentiation.

[00:10:41] Speaker 02:
Is that a fair characterization of the effect of the dependent claims on the analysis here?

[00:10:47] Speaker 00:
I don't really think it's your kind of typical claim differentiation.

[00:10:52] Speaker 00:
Typically you say, well, we added a limitation in a dependent claim, and therefore the independent claim doesn't necessarily have to have that.

[00:11:01] Speaker 00:
But here we're talking about we added in the dependent claim so that independent claim can't exclude that limitation.

[00:11:10] Speaker 00:
Is that claim differentiation in the kind of standard sense?

[00:11:14] Speaker 00:
I'm not sure that it is.

[00:11:15] Speaker 02:
I mean, as I understand it, and I don't know if you've conceded this or not, but if the district court construction stands, those dependent claims are broader than the independent claims.

[00:11:28] Speaker 02:
And they're also nonsensical, and therefore, I think, invalid.

[00:11:32] Speaker 02:
Is that right?

[00:11:33] Speaker 00:
I've said that.

[00:11:34] Speaker 00:
You have said that?

[00:11:35] Speaker 00:
Yeah, I've said that.

[00:11:36] Speaker 00:
I mean, you basically have a dependent claim that says,

[00:11:39] Speaker 00:
We exclude warp and weft yarns and we include warp and weft yarns.

[00:11:44] Speaker 00:
I don't know what you can do with that.

[00:11:54] Speaker 01:
Thank you, Your Honor.

[00:11:55] Speaker 01:
May it please the Court.

[00:11:57] Speaker 01:
The language of the claims and the specification make it abundantly clear that securing yarns are yarns other than the yarns of the upper and lower layer.

[00:12:06] Speaker 02:
What can you point to that makes it abundantly clear or even clear that a warp or weft yarn cannot serve the function of a securing yarn?

[00:12:15] Speaker 01:
A warp or weft yarn

[00:12:17] Speaker 01:
could, according to the one passage discussed previously, serve the function of a securing yarn.

[00:12:23] Speaker 01:
But in that embodiment, it wouldn't be a securing yarn.

[00:12:27] Speaker 01:
And maybe we should look at that passage first, because I think it's critical.

[00:12:31] Speaker 01:
So the passage and specification that addresses this issue is at page 31 of the appendix.

[00:12:39] Speaker 01:
It's column 3, lines 35 to 42 with specification.

[00:12:44] Speaker 01:
There, the patentee tells us in some embodiments, one or more of the warp and or weft yarns could be used in addition to or in place of one or more securing yarns for holding the two or more layers together.

[00:13:00] Speaker 01:
So if we stop right there, that language tells us that the securing yarns are separate and distinct from the yarns of the upper and lower layers.

[00:13:07] Speaker 02:
It also tells us you can use a warp or weft yarn as a securing yarn.

[00:13:12] Speaker 02:
you could use it to secure, but it would be in place of a securing yarn.

[00:13:17] Speaker 02:
And therefore serving the function of the securing yarn.

[00:13:19] Speaker 02:
If you don't have anything securing, you just have a bunch of layers that are not woven together.

[00:13:24] Speaker 01:
It could serve the function of securing, and that embodiment would be one in which the upper and lower layers are secured together with the warp and weft yarns, with no separate securing yarns.

[00:13:34] Speaker 01:
That embodiment is not claimed.

[00:13:36] Speaker 01:
How do you say that?

[00:13:38] Speaker 02:
I mean, first of all, you admit it is claimed in the 379 dependent claims, right?

[00:13:43] Speaker 02:
No dispute about that.

[00:13:46] Speaker 01:
I admit that the later added dependent claims are an effort to redefine the scope of securing yarns to include yarns of the upper and lower layers.

[00:14:01] Speaker 01:
I also would say that those claims

[00:14:04] Speaker 01:
are difficult to make sensical in light of the claim's court's construction.

[00:14:11] Speaker 01:
But they don't make sense when compared to claim one in the first place.

[00:14:15] Speaker 02:
They make perfect sense if the district court's construction is wrong and we adopt the plaintiff's construction, which is securing the orange is something that holds the two layers together.

[00:14:27] Speaker 01:
The problem with that construction, though, Your Honor, is that it's nowhere in the specification.

[00:14:32] Speaker 01:
In fact, it's correct.

[00:14:33] Speaker 01:
You just read to us where it is in the specification.

[00:14:35] Speaker 01:
Well, but they are in the specification.

[00:14:38] Speaker 01:
We're told that the securing yarns are not the yarns of the upper and lower layers.

[00:14:45] Speaker 01:
In some embodiments, one or more of the warp and our weft yarns could be used in addition to

[00:14:51] Speaker 01:
Or in place of one or more securing yarns.

[00:14:54] Speaker 02:
But then I come back to my question.

[00:14:55] Speaker 02:
What excludes the warper weft yarns from performing the function of the securing yarn?

[00:15:03] Speaker 01:
The warper weft yarn, according to that single sentence there, there could perform the function.

[00:15:09] Speaker 01:
But the patent teaches us that the securing yarns are different.

[00:15:13] Speaker 01:
And let me give you another example of where that comes up.

[00:15:17] Speaker 01:
Column two lines 36 to 46 of the specification at appendix 30.

[00:15:23] Speaker 01:
There, the patentee tells us generally the yarns of one layer are not interwoven with the yarns of another layer.

[00:15:33] Speaker 01:
because such interweaving tends to increase the degree of crimp for the yarn in relation to the rest of the yarns in the fabric, which can create ballistic weak points.

[00:15:43] Speaker 01:
And here the patentee is discussing directly securing the upper and lower layer with no securing yarn.

[00:15:49] Speaker 01:
Patentee continues, in particular, the first or upper yarns are not interwoven with the second or lower yarns and vice versa.

[00:15:57] Speaker 02:
If they're disparaging certain embodiments, they would prefer not to use the warp or weft yarns as securing yarns, but all of that is consistent with, hey, there's different ways to practice my claims.

[00:16:10] Speaker 02:
Sometimes you can use a warp or weft yarn to perform the functional securing yarn.

[00:16:16] Speaker 01:
But here's what they say next, in the next sentence.

[00:16:18] Speaker 01:
Instead, as shown, the first or upper layer and second or lower layer are secured together by one or more securing yarns.

[00:16:26] Speaker 01:
What that's telling us is that the securing yarns are necessarily different from the yarns of the upper and lower layer.

[00:16:33] Speaker 01:
They provide a special benefit in contrast to using the yarns of the upper and lower layer to secure.

[00:16:40] Speaker 01:
So from a definitional perspective, which is what I think we're here for, the securing yarns as used everywhere in the patent specification and the independent claims

[00:16:52] Speaker 01:
The securing yarns are a distinct component separate from the yarns of the upper and lower layer.

[00:16:58] Speaker 05:
So you can tell that you have multiple portions of the specification and independent claims that support the District Court's claim protection.

[00:17:05] Speaker 01:
Correct.

[00:17:06] Speaker 01:
And let me return to that if I could.

[00:17:08] Speaker 01:
So starting with claim one, which is on page 34 of the appendix.

[00:17:16] Speaker 01:
Claim one separately identifies three elements of the multi-layer ballistic fabric.

[00:17:22] Speaker 01:
an upper woven layer, warped and weft yarns, a lower woven layer with warped and weft yarns, and securing yarns.

[00:17:32] Speaker 01:
Securing yarns are identified as a separate component in Claim 1.

[00:17:36] Speaker 01:
Claim 1 then teaches us that the securing yarns are interwoven with the yarns of the upper and lower layers.

[00:17:45] Speaker 01:
The clear implication of that claim language is that the securing yarns are not the yarns of the upper and lower woven layers.

[00:17:52] Speaker 05:
What is your response to the issue of potentially rendering some of the dependent claims nonsensical?

[00:17:59] Speaker 01:
So, Your Honor, this Court has recognized in multiple cases that in some instances a proper construction might render dependent claims nonsensical or even invalid.

[00:18:10] Speaker 01:
And we cite several cases in our briefs.

[00:18:13] Speaker 01:
The three that I think are most informative are the Kiev Consulting case,

[00:18:19] Speaker 01:
the Regents of University of California case, and the ICU medical case.

[00:18:24] Speaker 01:
Those cases are discussed in detail on pages 35 to 37 of our briefs.

[00:18:28] Speaker 01:
In each of those cases, this court adopted a construction that effectively rendered dependent claims either superfluous or invalid, having no scope at all.

[00:18:39] Speaker 01:
And the court did so because the canons of claim differentiation or dependent claim preservation

[00:18:47] Speaker 01:
It's one of those two canons that are at issue here, either claim differentiation or dependent claim preservation.

[00:18:52] Speaker 01:
They're not absolute rules.

[00:18:54] Speaker 02:
Well, none of these are absolute rules, but in any of those cases, was there

[00:18:59] Speaker 02:
What I would consider, I guess you'd maybe disagree, specification support for the very embodiment that is then later claimed in the dependent claims, the in place of embodiment.

[00:19:10] Speaker 01:
In those cases, there was no specification support for the construction being urged by the patentee.

[00:19:16] Speaker 01:
And I would contend that's the case here.

[00:19:18] Speaker 01:
Because the unclaimed embodiment of using the warp and weft yarns to secure without securing yarns, while discussing specification,

[00:19:27] Speaker 01:
and while the notion of being able to use a warp and weft arm to perform the function of securing yarns, that passage only tells us that while functionally you could do that, it's not what the patentee calls and defines as the securing yarns.

[00:19:42] Speaker 01:
The securing yarns in that passage are necessarily different.

[00:19:46] Speaker 01:
from the warp and weft yarns of the upper and lower layers.

[00:19:50] Speaker 01:
In addition to or in place of language, I think compels that conclusion, and I think it's impossible to reconcile Bardet's construction, which can treat these securing yarns as one and the same as the warp and weft yarns.

[00:20:06] Speaker 01:
It's impossible to reconcile that construction with this passage.

[00:20:10] Speaker 04:
Even if.

[00:20:10] Speaker 04:
You presented to us as really a claim construction dispute, as opposed to, under the call, an infringement dispute.

[00:20:16] Speaker 01:
Correct.

[00:20:16] Speaker 01:
Do you agree with that?

[00:20:17] Speaker 01:
I agree.

[00:20:18] Speaker 01:
No.

[00:20:18] Speaker 01:
All that.

[00:20:19] Speaker 01:
I also disagree that the court considered infringing products in its claim construction.

[00:20:23] Speaker 01:
I think the court did exactly what it was supposed to do.

[00:20:25] Speaker 01:
It was an intrinsic evidence case.

[00:20:27] Speaker 01:
It marched through the independent claims.

[00:20:28] Speaker 01:
It marched through multiple passages of the specification, which uniformly describes securing yarns as distinct from the yarns of the upper and lower layers.

[00:20:38] Speaker 01:
And then it addressed the dependent claims.

[00:20:40] Speaker 02:
And part of the argument about why the dependent claim shouldn't bother us seems to be that they were litigation-driven, the timing that they were added.

[00:20:50] Speaker 02:
Have you found any cases where we have said that the patentees' right, their property right in the dependent claim is somehow lessened or less valuable or easier to invalidate because of the timing it was added or whether it was litigation-motivated or whatever their motivations were?

[00:21:07] Speaker 02:
Have we ever said that?

[00:21:08] Speaker 01:
What the court has said, excuse me, in two cases, Cave Consulting and ICU Medical, is this.

[00:21:17] Speaker 01:
The canons of claim differentiation and dependent claim preservation should be given even less weight in situations where the dependent claims were not part of the original application and were added after the allegedly infringing product went to market.

[00:21:32] Speaker 01:
So Cave Consulting

[00:21:35] Speaker 01:
which we cite in our brief, the court there explained, the fact that the dependent claims relied upon by the patentee were added after the filing of the original application is significant.

[00:21:46] Speaker 02:
But I think you've agreed already, but I want to make sure I follow your position.

[00:21:51] Speaker 02:
In neither of those cases was there a specification calling out expressly the embodiment that later is claimed in the dependent claims.

[00:22:02] Speaker 01:
In none of those cases, I think you're correct, Your Honor.

[00:22:04] Speaker 01:
None of those cases was there.

[00:22:06] Speaker 02:
So that statement in the specification, whatever it means, we might disagree about its meaning.

[00:22:10] Speaker 02:
It was not litigation driven.

[00:22:12] Speaker 02:
It was not added by amendment.

[00:22:13] Speaker 02:
It was not added years later, right?

[00:22:15] Speaker 01:
The passage at column 3, lines 35 to 42, that was the original specification.

[00:22:21] Speaker 01:
I agree.

[00:22:22] Speaker 01:
I would emphasize though that we contend below and we contend here that that's our favorite passage in the specification.

[00:22:29] Speaker 01:
We think that is some of the strongest support for our construction and the district court's construction because

[00:22:36] Speaker 01:
it draws a clear distinction.

[00:22:37] Speaker 01:
It tells us that the securing yarns and the yarns of the upper and lower layers are not one and the same.

[00:22:43] Speaker 02:
They are not one and the same, but it says nothing about how a warp or weft yarn cannot serve the function of a securing yarn.

[00:22:51] Speaker 02:
In fact, I mean, I know we're going in circles.

[00:22:54] Speaker 02:
It says to me, at least, that a warp or weft yarn can, very much can, serve the function of a securing yarn.

[00:23:02] Speaker 03:
Do the dependent claims

[00:23:04] Speaker 03:
actually say that the warp and weft yarns perform the function of the securing yarns, or they are the securing yarns?

[00:23:11] Speaker 01:
More the latter, Your Honor.

[00:23:12] Speaker 01:
They say the securing yarns could include the yarns of the upper and lower layers.

[00:23:19] Speaker 03:
So Your Honor, I know... So even if we read that passage as saying the warp and weft can perform the function, I mean, is there even written description support for these dependent claims?

[00:23:33] Speaker 03:
Because they don't...

[00:23:34] Speaker 03:
talk about performing the function, they talk about them being the securing the arms.

[00:23:38] Speaker 01:
The defendant claims to you, Your Honor, and there is no support for that.

[00:23:40] Speaker 02:
No, correct.

[00:23:41] Speaker 02:
But that's not an issue before us or was raised in the district court, right?

[00:23:45] Speaker 02:
You didn't get to invalidity.

[00:23:46] Speaker 01:
We did not get to invalidity, but Your Honor, we did argue that there is no support, evidentiary support, intrinsic evidentiary support for the construction.

[00:23:54] Speaker 01:
So not a 112 invalidity issue, but related, because we're saying there's no support.

[00:23:59] Speaker 01:
And again,

[00:24:00] Speaker 01:
I don't want to go in circle on it.

[00:24:02] Speaker 01:
I understand your question, but I would just emphasize that while that embodiment, which references using warp or weft yarns to do the function of securing, while that's referenced, that very passage tells us that using the warp and weft yarns to perform that function would be an embodiment where there are no securing yarns.

[00:24:28] Speaker 01:
as defined by the patentee.

[00:24:30] Speaker 01:
That's an embodiment where the warp and weft yarns of the upper and lower layers are used without securing yarns in place of them.

[00:24:37] Speaker 03:
Does that go to the construction of what a warp and weft yarn can be rather than a securing yarn?

[00:24:42] Speaker 01:
I don't think so.

[00:24:43] Speaker 01:
I think because I don't think there's much of a dispute that the warp and weft yarns are used in the upper layer and lower layer too.

[00:24:49] Speaker 03:
I'm not trying to trap you.

[00:24:50] Speaker 03:
I don't think it matters to your case, and I don't think they would have argued this anyway, if securing yarns has to be separate from these

[00:24:58] Speaker 03:
But a warp and weft yarn can perform the function of the securing yarn.

[00:25:06] Speaker 03:
Maybe it does.

[00:25:06] Speaker 03:
Maybe your product infringes under that.

[00:25:08] Speaker 03:
But we're here on what securing yarn means.

[00:25:11] Speaker 01:
Correct.

[00:25:11] Speaker 03:
And if it has to be separate from warp and weft, even if warp and weft can perform the same function, then that's the correct construction.

[00:25:20] Speaker 01:
And I think that's fundamentally our point, Your Honor, that even if this passage discloses

[00:25:25] Speaker 01:
Well, it discloses two embodiments, if we can agree on that.

[00:25:29] Speaker 01:
The in addition to embodiment and the in place of embodiment.

[00:25:33] Speaker 01:
And both support our construction, I'll explain why.

[00:25:37] Speaker 01:
In addition to embodiment, we have securing yarns performing the function of securing and the warp and weft yarns performing the function of securing.

[00:25:49] Speaker 01:
In that embodiment, the patentee is telling us the securing yarns are different from the warp and weft yarns, even though they're both performing the same function.

[00:25:57] Speaker 01:
In the in place of embodiment, there are no securing yarns.

[00:26:01] Speaker 01:
The warp or weft yarns are being used in place of the securing yarns.

[00:26:08] Speaker 01:
To me, it's impossible to reconcile that language, the patentee's language in the original specification, with the construction now being urged by Bardet, which is not simply

[00:26:18] Speaker 01:
that the warp and weft yarns of the upper and lower layers can perform the function of securing.

[00:26:23] Speaker 01:
That's not Barde's construction.

[00:26:25] Speaker 01:
Barde's construction is that the securing yarns, as that phrase is used in the invention, can be the warp and weft yarns.

[00:26:34] Speaker 01:
They can be one and the same.

[00:26:36] Speaker 01:
That's their argument.

[00:26:37] Speaker 01:
And specification column three, lines 35 to 42, to me undermines that without question.

[00:26:45] Speaker 05:
And the other portions of the specification undermine that.

[00:26:47] Speaker 01:
Which I did not get into, Your Honor, throughout the brief, but everywhere in the specification, securing yarns are actually defined in contrast to the warp and weft yarns of the upper and lower layer.

[00:26:57] Speaker 01:
That's how the patentee tells us what they are.

[00:27:03] Speaker 02:
Thanks.

[00:27:03] Speaker 01:
Thank you.

[00:27:09] Speaker 01:
Council you have about three and a half minutes to the bottom left.

[00:27:11] Speaker 00:
Thank you your honor just very briefly I think it is important to note the claim language in the dependent claims it says the woven fabric of claim one wherein the securing yarns include one or more of the upper warp yarns lower warp yarns upper weft yarns and lower weft yarns and I think

[00:27:31] Speaker 00:
What needs to be done, or we urge the court to do, is read that together with the paragraph in column three.

[00:27:39] Speaker 00:
And it should be read so that they're consistent.

[00:27:43] Speaker 00:
I believe that does provide support.

[00:27:45] Speaker 00:
And I think that the only way to read it consistently is to adopt our construction.

[00:27:54] Speaker 02:
What do you say to the suggestion that the specification contemplates

[00:28:01] Speaker 02:
a embodiment where there is no securing yarn.

[00:28:06] Speaker 02:
The in lieu of or in place of is an embodiment they would say not claimed in which maybe a warp and weft are serving the function of a securing yarn, but there is no securing yarn.

[00:28:18] Speaker 02:
That seems to be their argument now.

[00:28:19] Speaker 02:
What's the response?

[00:28:20] Speaker 00:
Yeah, I think that you look at the dependent claims, and you read that with that paragraph, and that's not how it plays out.

[00:28:26] Speaker 00:
I think the in place of means that the securing yarns can include the warped or weft yarns.

[00:28:32] Speaker 00:
When you read those two things together, I think that's the conclusion you have to come to.

[00:28:35] Speaker 00:
Thank you.

[00:28:39] Speaker 00:
Anything else?

[00:28:39] Speaker 00:
Thanks.